Ex Parte Ghouri

Patent Trial and Appeal Board

Jul 25, 2016

11957387 (P.T.A.B. Jul. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111957,387 12/14/2007
8698 7590 07/27/2016
STANDLEY LAW GROUP LLP
6300 Riverside Drive
Dublin, OH 43017
FIRST NAMED INVENTOR
Ahmed Ghouri
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
HUM2027-202 9239
EXAMINER
PATEL,NEHA
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
07/27/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
s tandleydocketing@standley llp .com
PTOL-90A (Rev. 04/07)
lJNITEu STATES PATENT ANu TRAuEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AHMED GHOURI
Appeal2014--001670
Application 11/957,387
Technology Center 3600
Before ANTON W. PETTING, BIBHU R. MOHANTY, and
BRADLEY B. BAY AT, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Ahmed Ghouri (Appellant) seeks review under 35 U.S.C. § 134 of a
final rejection of claims 1-20, the only claims pending in the application on
appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
The Appellant invented a way of managing healthcare information.
Specification 1: 6-9.
1 Our decision will make reference to the Appellant's Appeal Brief ("App.
Br.," filed August 15, 2013) and Reply Brief ("Reply Br.," filed October 25,
2013), and the Examiner's Answer ("Ans.," mailed September 12, 2013),
and Final Action ("Final Act.," mailed June 7, 2012).
Appeal2014-001670
Application 11/957,387
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A system
for pay for performance
for care of a patient
by one or more physician who care for the patient,
the system comprising:
[ 1] a health record containing information about
a patient,
one or more physicians associated with the patient
and
a medical history of the patient;
[2] a pay for performance gateway
having
a nlles matrix with a plurality of guidelines
wherein each guideline associates a care
option for care of a patient with a pay for
performance incentive
and
generator unit
that generates a patient specific guideline list
for the one or more physicians associated
with a particular patient based on the
medical history of the particular patient and
rules matrix,
each patient specific guideline list contains
one or more care options for the
specific patient
and
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Application 11/957,387
and
the pay for performance incentive for
each of the one or more care options
for the specific patient;
[3] one or more physician units,
wherein each physician unit has a pay for performance
unit that is configured to
display the patient specific guideline list for the
particular patient
and
permit the physician to indicate that the care option
contained in the patient specific guideline list has
been performed
wherein the physician is incentivized to provide
the care option based on the pay for performance
incentive.
The Examiner relies upon the following prior art:
Ciamiello US 6,802,810 B2 Oct. 12, 2004
Greene US 2008/0262866 Al Oct. 23, 2008
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Ciamiello and Greene.
ISSUES
The issues of obviousness tum primarily on whether the combination of
the references describes or shows to be predictable adding pay for
performance incentive information to a list of patient guidelines.
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Application 11/957,387
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Ciarniello
01. Ciamiello is directed to medical analysis. Ciamiello 1:7-11.
02. Ciamiello describes application tools for identifying potentially
problematic patient cases before they become effective problems,
case and disease management applications and programs for
managing problematic and complex cases and applications and
services to improve overall risk underwriting profitability.
Ciamiello 2:56----67.
03. Ciamiello describes a Private Health Record, which is a secure,
password-protected personal Web page that will be auto-populated
by the Care Engine with patient data collected by the Data Vault.
The Private Health Record will include the following features:
elements of the patient's healthcare history, such as lab, pharmacy
and claims data presented in easily understandable format; a
patient healthcare diary, which can be used by patients to record
the results of self-administered tests, as well as information
regarding use of over-the-counter medications and dietary
supplements; the ability to "push" relevant health reference
information to the patient based on that patient's specific medical
data file; the ability to "pull" healthcare information entered by
the patient into the Private Health Record into that patient's
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Application 11/957,387
medical data file; links to the patient's health plan's Web site for
eligibility, referral and procedure authorization information; a
physician view function which allows the patient to print out a
summary of his or her medical information in a physician-oriented
format; links to online disease management communities and
content; links to health status and health risk assessment tools; and
patient-controlled security access to the Private Health Record.
Ciamiello 8:20-50.
04. Ciamiello describes matrices as a predefined list or grouping of
elements across all of the classes of data including lab elements,
drug elements, diagnoses elements, and procedure elements. As
an example, procedure elements could be an MRI if the patient is
diagnosed with a certain type of disease and should be having
certain types of MRis performed as the normal course of clinical
care; the matrix would contain all the appropriate MRI procedure
elements. Each element of the matrix is defined and these element
definitions are continuously evolving and being redefined based
upon current medical information and knowledge. Ciamiello
10:56-11:6.
05. Ciamiello describes the matrix defining the context in which to
group elements. As an example, a patient diagnosed with high
cholesterol would have their data processed in a matrix which
would contain all the defined elements for certain cholesterol
reducing drugs and the corresponding care considerations.
Ciamiello 11 :7-12.
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Application 11/957,387
Greene
06. Greene is directed to improvements in the delivery of health
care. Greene para. 2.
07. Greene financially rewards medical practitioners and patients
for controlling costs through utilization of evidence-based
medicine treatment guidelines and information therapy. Greene
para. 35.
08. Greene provides an incentive to the patient to take a pro-active
approach to recovery from and prevention of medical conditions.
Greene para. 91.
09. Greene provides the medical practitioner with the option of
prescribing Ix for the patient. Greene encourages the medical
practitioner to prescribe Ix for the patient by rewarding the
medical practitioner with a higher rate of compensation. Greene
para. 92.
ANALYSIS
Claims 1 and 13 are essentially system and process versions of similar
sets of limitations. Claim 1 recites three structural components, viz. a health
record, a gateway with a set of rules and a generator of patient specific
guideline lists, and a physician unit allowing display of guidelines and entry
of performance acknowledgement. As the phrase "physician unit" might be
taken several ways, we find that the Specification clarifies that this refers to
a computer unit for physician use and not a set (unit) of physicians
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themselves. Spec. 4:27-28. Each of the gateway and physician unit
limitations also refers to pay for performance incentives.
As to claim 1, the Examiner finds that Ciamiello describes the record,
gateway and physician unit absent such pay for performance data, and that
Greene suggests adding such pay for performance data. Final Act. 3--4.
We are not persuaded by Appellant's argument that
While it is necessarily true that a pharmacy order or lab order
lists a physician who ordered it, the physician information that
may be part of the order is not necessarily present in the lab,
pharmacy and claim data, testing results in Ciamiello and there
is nothing in Ciamiello to suggest that the physician
information is in fact present. It is certainly possible that it is
present, but not necessarily present since it could be removed
before being stored in the Ciamiello system since the Ciamiello
system does not describe any need/use of the physician data.
App. Br. 7-8. This argument imagines the complete absence of the known
regulation of medicine in this country. Appellant admits that the order
necessarily lists the physician. It was at least predictable, not to say a
regulatory requirement, that the results of the order refer to the physician
under whose authority the order was performed and to whom they are likely
addressed. Also, records created by a physician regarding patient health are
generally required to indicate the physician identity. Further, claim 1 recites
information about a physician, not identifying a physician per se.
Information about tests ordered by a physician are at least in that sense about
the physician.
We are not persuaded by Appellant's argument that Ciamiello fails to
describe pay for performance and Greene fails to describe the matrix. App.
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Br. 9. The Examiner applies Ciamiello for the matrix and Greene for pay
for performance.
We are not persuaded by Appellant's argument that Greene does not
describe the guideline list with incentives for each guideline. This argument
is similar to the prior argument. As Ciamiello describes a matrix of
guidelines specific to a patient and Greene describes a set of rules applying
pay for performance to individual guidelines, the Examiner finds it was
predictable to include Greene's incentives in Ciamiello' s matrix if only to
increase the likelihood of following the guidelines for which the incentives
are applied.
CONCLUSIONS OF LAW
The rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable
over Ciamiello and Greene is proper.
DECISION
The rejection of claims 1-20 is affirmed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv) (2011).
AFFIRMED
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